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Transgender Legal Advisor

A Few Legal Briefs

By Carolyn Woodward

Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at CarolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.


In my last article I wrote about the issue of the validity of pre-existing marriages of post-op Transsexuals. My conclusion was that if the marriage was valid at the time it was entered into, then it remained so, and a divorce was the necessary action to terminate the same. I've recently read that a southern California court has ruled that this is in fact the case as the marriage was valid when created.

On that same issue, I was asked a rather interesting question by a couple who want to stay married even though both partners are now legally women. The question was whether the government can make them get a divorce.

As of now, the answer is no. A divorce must be initiated by a party to the marriage (or perhaps a conservator if one is appointed for the person of one of the parties - but let's not go there for this discussion). The government has no authority to initiate the dissolution of a marriage which was valid when entered into. That isn't to say it could not happen if the legislature and governor decide that the contrary should be the case. Since divorce is a creature of statute - that is it is controlled by laws passed in the various states - it is conceivable that the legislature could pass a law which would require the dissolution of any marriage existing between two persons on the event of one having sex-reassignment surgery. Now that's a scary thought. There might be legal grounds to oppose such a statute, but let's hope rather that the various state legislatures decide to keep their noses out of our private business (can you tell I'm a Libertarian?) and let each couple decide whether or not to divorce on their own.

A while back TGForum ran an article by Dr. Sheila Kirk discussing the use of hormones in lower doses for transgendered persons not seeking transition and/or SRS. As for me - where do I sign up? Actually, the question is not so much where, but WHEN can I sign up. If such hormone administration becomes a reality as a widely accepted option for those not seeking the "full treatment" it will be after much time and careful research.

Why? Well, one reason would be that a responsible physician is not going to run out and engage in such a practice without significant studies to give her an idea, based on strong empirical evience, of what to expect. There are issues of changes in libido, physical feminization (ie - breast development, fat distribution), chemical castration, and numerous side effects to consider. Dr. Kirk was careful to point out that contra-hormonal therapy changes the body's carefully balanced chemistry in a number of ways, and anticipating those effects is far from being an exact science.

Another reason would be people like me (I mean generically - I don't do medical malpractice suits). There are all sorts of opinions as to whether or not litigation is out of control (I think it is to some extent), but litigation is a reality of life. When it comes to doctors, many of them consider it a nightmare environment. Medicine in general is as much art as science in many areas of practice, yet people tend to hold their doctors to standards of perfection. That's not possible, but there is standard to which physicians are held. That would be that they are held to the level of competence to be found among physicians generally in their community. (Yes,it is a simplification, but we don't need more for this discussion). If they are specialists, such as endocrinologists, then the standard is that of other specialists - usually a higher standard so long as they are working within their specialty.

So, how does this slow down the availability of this type of hormone therapy? If it is not generally accepted among physicians who practice this type of medicine, then a physician who makes it widely available runs the risk of being sued for failing to execise the level of care expected. For example, if male who is transgendered wishes to experience some physical feminization, but wants to retain the ability to maintain an erection, he would approach (we hope) a qualified endocrinologist who deals with transgendered persons. Now, there comes the question of whether such a balance is possible to maintain over the long haul - I personally haven't a clue. But does the doctor? Are there studies to guide her? Are they extensive? Is this type of therapy considered responsible, and is it accepted among those physicians who are experienced with transgendered patients? Are any of these answers "no?" If so, the doctor runs a great risk of being sued for malpractice if something goes wrong - and all the informed consent documents in the world won't help if the therapy is not accepted by the appropriate part of the medical community. (I'm not talking about the experimental studies wherein the requisite knowledge and acceptance are established. People in these studies KNOW they are experimental, and agree to do it anyway and take the risk.)

Like I said, where do I sign up? Alas it will be a while, based on what Dr. Kirk told us in her article, because extensive studies will be necessary first to establish the feasibility and limitations of such therapy. It should not be any other way for reasons of physician responsibility and the legal ramifications as well. I won't hold my breath, Dr. Kirk, but I'm rooting for you.

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